The tort of negligence

4.1 The Tort of Negligence (Cambridge IGCSE/A‑Level 9084)

4.1.1 Nature of Liability

• Personal liability – The defendant who breaches the duty is liable in his/her own name.
• Vicarious liability – An employer (or principal) can be held liable for the negligent act of an employee (or agent) if the act was committed “in the course of employment” or is “so closely connected” with the employee’s duties that it is fair, just and reasonable to impose liability.
  • Key case: Lister v Hesley Hall Ltd (2001) – introduced the “close‑connection” test.
  • Illustration: A driver employed to deliver parcels who negligently causes a collision; the employer is liable for the driver’s negligence.
• Joint and several liability – Where two or more defendants are liable for the same loss, each may be required to pay the whole amount; the claimant can recover the full sum from any one defendant, who may then seek contribution from the others.
  • Case: Wagon Mound (No 2) (1967) – joint‑causation and the principle that each “joint tortfeasor” is liable for the whole damage.

4.1.2 Duty of Care

4.1.2.1 Core Tests

1. Neighbour principle – Donoghue v Stevenson (1932): A person must take reasonable care to avoid acts or omissions which are reasonably foreseeable as likely to cause injury to his “neighbour” (anyone closely and directly affected).
2. Caparo test – Caparo Industries plc v Dickman (1990): A three‑stage test
   1. Foreseeability of damage;
   2. Proximity of relationship;
   3. Whether, in the circumstances, it is just, fair and reasonable to impose a duty (policy considerations).

4.1.2.2 Policy Considerations (third limb of Caparo)

• Flood‑gate arguments – avoiding an indeterminate number of claims.
• Allocation of resources – preventing an undue burden on society or a particular class of defendants.
• Legal certainty – the need for clear, predictable rules.
• Illustrative case: Hill v Chief Constable of West Yorkshire (1989) – duty to the public was refused on public‑policy grounds.

4.1.3 Breach of Duty

• Objective reasonable‑person standard – Conduct is measured against that of a reasonable person in the same circumstances.
• Special standards
  • Children – Standard of a child of the same age and intelligence (V v West London Hospital).
  • Professionals & experts – The “Bolam test”: a professional is not negligent if acting in accordance with a practice accepted as proper by a responsible body of professional opinion (Bolam v Friern Hospital Management Committee (1957)).
    Refined by Bolitho v City and Hackney Health Authority (1997): the professional opinion must also be logical and defensible.
  • Specialist skills – Higher standards may be imposed where the defendant possesses particular expertise (e.g., engineers, accountants).
• Risk‑utility (Balancing) analysis – Courts weigh:
  • Probability of harm;
  • Magnitude of the possible loss;
  • Burden of taking precautions;
  • Social utility of the activity.
  Illustrated by Bolton v Stone (1951) – a cricket‑ball risk was deemed too remote to require a higher fence.

4.1.4 Causation

4.1.4.1 Factual Causation

• But‑for test – Would the loss have occurred “but for” the defendant’s breach?
• Multiple independent causes – If each act satisfies the but‑for test, each defendant is liable (joint and several liability applies).

4.1.4.2 Legal Causation (Remoteness)

• Wagon Mound (No 2) test – Liability is limited to damage of a type that was reasonably foreseeable as a consequence of the breach.
• Egg‑shell skull rule – The defendant takes the claimant as he finds them; any greater injury caused by a pre‑existing vulnerability is still recoverable (Smith v Leech Brain & Co (1962)).
• Intervening acts (novus actus interveniens)
  • Voluntary assumption of risk by the claimant (e.g., Paris v Stepney Borough Council).
  • Independent third‑party negligence may be a “concurrent cause” – the original defendant remains liable if his act was a material contribution (Richardson v LRC Group).

4.1.5 Damage

• Physical injury & property damage – Fully recoverable (compensatory damages).
• Pure economic loss
  • Generally not recoverable unless a “special relationship” exists (e.g., negligent misstatement).
  • Key cases:
    • Hedley Byrne & Co v Heller (1964) – liability for negligent misstatement where a special relationship exists.
    • Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd (1973) – loss of profit flowing from physical damage is recoverable; pure economic loss unconnected with physical damage is not.
• Negligent misstatement – Duty arises when the defendant voluntarily assumes responsibility for the accuracy of information and the claimant relies on it (see Hedley Byrne).
• Nervous shock (psychiatric injury)
  • Primary victims – directly involved in the incident; recover for psychiatric injury.
  • Secondary victims – must satisfy three proximity requirements (close tie of love & affection, proximity in time & space, and perception of the event with their own senses). Alcock v Chief Constable of South Yorkshire Police (1992) sets these limits.
  • Policy: limits are designed to avoid “liability for all emotional reactions”.
• Policy debate – Ongoing discussion about extending recovery for pure economic loss and nervous shock while balancing flood‑gate concerns.

4.2 Torts Affecting Land

4.2.1 Occupiers’ Liability

• Statutes
  • Occupiers’ Liability Act 1957 – duty of care to lawful visitors (invitees).
  • Occupiers’ Liability Act 1984 – duty of care to “persons other than visitors” (e.g., trespassers) where the risk is “obvious” and the occupier is “aware” of it.
• Key cases
  • Wheat v Lacon (1966) – occupier owes a duty to a lawful visitor to take reasonable steps to avoid danger.
  • British Railways Board v Herrington (1972) – recognised a limited duty of care to trespassers (later superseded by the 1984 Act).

4.2.2 Private Nuisance

• Unreasonable interference with the use or enjoyment of land.
• Elements:
  1. Existence of a “right to enjoy land” (property right).
  2. Unreasonable interference (physical damage, noise, smell, etc.).
  3. Foreseeability is not required – the interference itself must be unreasonable.
• Key cases:
  • Sturges v Bridgman (1879) – “coming to the nuisance” is not a defence; the character of the locality matters.
  • Cambridge Water Co Ltd v Eastern Counties Leather plc (1994) – introduced the “reasonable foreseeability of damage” element for nuisance (aligns with remoteness).

4.2.3 Rylands v Fletcher (Strict Liability)

• Rule: A person who, for his own purposes, brings onto his land and keeps something likely to cause mischief if it escapes, is strictly liable for any damage caused by its escape.
• Requirements:
  1. Non‑natural use of land;
  2. Something likely to cause mischief if it escapes;
  3. Escape;
  4. Damage to a neighbour’s land.
• Key cases:
  • Rylands v Fletcher (1868) – foundation of the rule.
  • Cambridge Water Co Ltd v Eastern Counties Leather plc (1994) – refined the test to require foreseeability of the type of damage.

4.2.4 Trespass to Land

• Direct, intentional (or negligent) entry onto land of another without permission.
• Elements:
  1. Entry onto land;
  2. Intent to enter (or at least knowledge that entry is occurring);
  3. Absence of lawful authority or consent.
• Key cases:
  • Entick v Carrington (1765) – established the principle that unlawful entry is actionable.
  • Robinson v Chief Constable of West Yorkshire Police (2018) – clarified the requirement of intent/knowledge for trespass.

4.3 Torts Affecting the Person

4.3.1 Assault

• An act which creates an apprehension in another of immediate and unlawful personal violence.
• Elements:
  1. Intent to cause apprehension of immediate unlawful violence;
  2. Apprehension is actually felt by the claimant;
  3. The apprehension is of immediate, not future, violence.
• Key case: R v Brown (1993) – clarified that the threat need not be successful; the mere fear is sufficient.

4.3.2 Battery

• Intentional and unlawful physical contact with another person.
• Elements:
  1. Intent to apply force (or knowledge that force is substantially certain to occur);
  2. Contact is unlawful (no consent or lawful justification);
  3. Contact is to the person of the claimant.
• Key case: R v Miller (1983) – established that unlawful touching, however slight, constitutes battery.

4.3.3 False Imprisonment

• Unlawful restraint of a person’s freedom of movement.
• Elements:
  1. Complete restriction of movement (physical barriers, force, or threat);
  2. Intent to restrict;
  3. Lack of lawful authority or consent.
• Key case: R v Governor of Brockhill Prison, ex parte Evans (1999) – emphasised that the restraint must be total, not merely a temporary inconvenience.

4.4 General Defences and Remedies

4.4.1 Defences

4.4.2 Remedies

• Damages – Compensatory (to place claimant in the position he would have been in but for the tort). Types:
  • General damages – for pain, suffering, loss of amenity.
  • Special damages – for quantifiable financial loss (e.g., loss of earnings, medical expenses).
  • Aggravated damages – where the defendant’s conduct was particularly reprehensible.
  • Nominal damages – where a right is infringed but no loss is proven.
• Injunctions – Court order to do or refrain from doing a particular act.
  • Interim (temporary) injunctions – preserve the status quo pending trial.
  • Permanent injunctions – granted after a full hearing.
  • Key case: Miller v Jackson (1977) – granted an injunction to stop cricket balls being hit into a garden, balancing private nuisance against public interest.

5 Revision Flowchart (Suggested Diagram)

6 Quick Revision Checklist (Cambridge 9084 – Sections 4.1‑4.4)

1. Identify the correct category of tort (negligence, occupiers’ liability, nuisance, Rylands, trespass, assault, battery, false imprisonment).
2. Negligence – Duty of Care
   • Apply the neighbour principle.
   • If unclear, use the Caparo three‑stage test, paying special attention to policy.
3. Negligence – Breach
   • Reasonable‑person objective test.
   • Consider any special standard (children, professionals, specialist skills).
   • Apply risk‑utility balancing where appropriate.
4. Negligence – Causation
   • Factual: “but‑for” test; note multiple causes.
   • Legal: foreseeability of type of damage (Wagon Mound), eggshell skull, intervening acts.
5. Negligence – Damage
   • Physical injury/property – always recoverable.
   • Pure economic loss – only with a special relationship (Hedley Byrne).
   • Nervous shock – check primary vs. secondary victim criteria.
6. Defences – assess whether any of the following apply:
   • Volenti (voluntary assumption of risk)
   • Contributory negligence (damage reduction)
   • Impossibility / act of God
   • Illegality (ex turpi causa)
7. Remedies
   • Damages – general, special, aggravated, nominal.
   • Injunctions – interim or permanent, where appropriate.
8. Liability Types
   • Personal liability of the defendant.
   • Vicarious liability – close‑connection test (Lister v Hesley Hall).
   • Joint and several liability – each tortfeasor may be required to pay the whole loss.
9. Policy considerations – always ask whether imposing a duty or awarding damages would open a flood‑gate, impose an unreasonable burden, or undermine legal certainty.